By Obert Chaurura Gutu
IT IS beyond debate that the death penalty is a controversial form of punishment. A certain school of thought passionately propounds the argument that the death penalty is a barbaric and anachronistic type of sentence carried over from the Dark Ages.
This particular school of thought argues, not without some justification, that the death penalty is a dangerous form of sentence particularly in countries with weak and fragmented legal systems.
It is further argued that there is a danger of an accused person being erroneously convicted and subsequently executed in a country with a weak legal system. Countries with weak legal systems usually don’t have advanced methods of proving guilt or innocence such as DNA.
Another argument is advanced to the effect that in some countries; poorly qualified lawyers represent people accused of committing serious offences such as murder and treason. In essence, the debate on whether or not the death penalty should be abolished is a complex jurisprudential subject.
Any debate pertaining to the death penalty will inevitably arouse a lot of different emotions from different people living in different parts of the world.
For instance, the death penalty is ruthlessly observed and enforced in countries that follow Sharia law. In such countries, there is really nothing to surprise anyone when convicted offenders are publicly executed; in some cases by firing squad.
In Zimbabwe, the death penalty has not been abolished; it is still in our statute books. It is a fact that the death penalty in Zimbabwe is a relic of our colonial past. During the colonial times, the death penalty was deliberately provided for to curtail the activities of the nationalist movements that were advocating and fighting for black majority rule.
It cannot be denied that the Rhodesian High Court was quick to condemn so-called terrorists to the death penalty. Of course, such actions were also meant to strike fear into the hearts of the generality of the black population so that they will be scared to actively participate in nationalist movements.
A case in point is the hanging of seven young black men in March 1968 after they had been convicted of murdering two members of the Rhodesian Army. These were Private Koroni and Corporal Davison. These seven young men had also been convicted of contravening the Law and Order Maintenance Act (LOMA) by illegally possessing weapons and assorted military material.
In 1968 alone, forty-nine people were convicted and sentenced to death for politically-motivated offences in the then Rhodesia.
The colonial system was brutally vicious and the death penalty was unashamedly resorted to with complete impunity. This was particularly the case during the state of emergency that was in place during the Ian Smith era. Lord Soames; the then Governor of Rhodesia, released 7671 political prisoners on January 6, 1980 when he lifted martial law and granted a general pardon to all those people convicted of politically motivated crimes.
It is sad to note that the present Public Order and Security Act (POSA) (Chapter 11:17), was an off shoot from the colonial Law and Order Maintenance Act (LOMA).
We all know how the present government in Zimbabwe has misused and abused POSA in its ruthless clampdown on the activities of opposition parties; particularly the MDC. Indeed, we should exorcise the ghost of LOMA out of POSA! It is particularly sad for a black administration to seek to employ repressive and draconian pieces of legislation such as those used by the die-hard racists and fascists of yesteryear. The modern ethos of democracy and good governance entail that legislation with a colonial hangover such as POSA should never find any place in our statute books.
Lest some readers misunderstand me; I am not at all advocating that we should not have any laws to safeguard public security and our national sovereignty. I am simply arguing that those provisions of POSA that smack of totalitarianism and fascism should be scraped off our statute books. For instance, does it make any democratic sense for organisers of any political meetings to seek clearance and approval from the police before holding any political gathering?
As I am writing this article, police in Zimbabwe have extended a three months ban against rallies and demonstrations in central Harare and in several townships in the capital. This was done purportedly "in the interest of preserving peace and public order". All right-thinking Zimbabweans know that this is absolute hogwash. The reality on the ground is that the ruling Zanu PF party is always free to hold rallies and demonstrations in Harare and indeed, wherever they want in Zimbabwe. POSA stinks!
Many countries in the world have abolished the death penalty. South Africa abolished the death penalty in 1995 following the celebrated case decided by the Constitutional Court. This was the case of the State vs Makwanyane and Mchunu. This case was heard by the Constitutional Court from February 15-17 in 1995. Judgment was delivered by the eminent jurist, Justice Chaskalson, the then Chief Justice of South Africa, on June 6, 1995.
Justice Chaskalson made the following order: "In terms of section 98(5) of the Constitution; and with effect from the date of this order the provisions of paragraphs (a), (c), (d),(e), and (f) of section 277(1) of the Criminal Procedure Act, and all corresponding provisions of other legislation sanctioning capital punishment which are in force in any part of the national territory in terms of section 229, are declared to be inconsistent with the Constitution and, accordingly, to be invalid.
“In terms of section 98(7) of the Constitution, and with effect from the date of this order; the State is and all its organs are forbidden to execute any person already sentenced to death under any of the provisions thus declared to be invalid; and all such persons will remain in custody under the sentences imposed on them, until such sentences have been set aside in accordance with the law and substituted by lawful punishments.”
This judgment marked a historic and defining moment in South African jurisprudence. It is worth noting that the last execution in South Africa took place on November 14, 1989. However, because of the serious crime rate in present day South Africa, of late, many people have been advocating for the death penalty to be re-introduced. Whether or not this will assist in lowering the rate of serious and violent crime in South Africa, I can not tell. This is a very emotional subject that only the South Africans themselves should be able to debate and perhaps decide through a referendum; whether or not the death penalty in their country should be re-introduced.
In Zimbabwe, there has been a very concerted effort by certain groups of people to advocate for the abolishment of the death penalty. I know that Amnesty International Zimbabwe Chapter is one of the strong protagonists against the death penalty.
For instance, it is argued that the right to life and the right to human dignity are absolute concepts; that no man has the right to terminate another person's life under any circumstances. It is also argued that the death penalty does not at all act as a deterrent to the commission of serious offences such as murder.
Further, it has been argued that the mental anguish suffered by convicted persons awaiting the death sentence is intolerable and is in its own right; primitive and dehumanising. A prolonged delay in the execution of a death sentence may cause the invalidation of a sentence of death that was lawfully imposed.
In Zimbabwe, India and Jamaica, where the death sentence is not unconstitutional, sentences of death have been set aside on these grounds.
For instance, in 1993 in the case of Catholic Commission For Justice and Peace in Zimbabwe vs Attorney General, Zimbabwe and Others 1993 (4) SA 239 (Zimbabwe Supreme Court), the then Chief Justice Gubbay, with the consent of the other Supreme Court judges sitting as a constitutional court, ruled that four individuals should have their death sentences commuted to life imprisonment because the delay in carrying out their sentences of death violated the constitutional ban on inhumane and/or degrading punishment. Following upon this case; at least 28 other prisoners on death row had their sentences commuted to life imprisonment.
The death penalty is under serious attack from human rights activists. Human rights activists throughout the world have condemned the death penalty as shocking and inhuman. Although the death sentence has been abolished in South Africa, some leading South African jurists still regret its abolishment. As I have stated above; the crime rate in South Africa is shocking and indeed, some prophets of doom have even argued that this serious crime rate will be a major and almost insurmountable challenge facing the 2010 World Cup project.
For instance, according to a recent study conducted by the Medical Research Council's Gender and Health Group, the Division of Forensic Medicine and Toxicology from the University of Cape Town and the Centre for the Study of Violence and Reconciliation; a woman is killed every six hours in South Africa by her intimate partner. South Africa has the highest rate of intimate femicide in the world. Recently, two judges at the Pretoria High Court sentenced two cold blooded murderers to life imprisonment. The two judges expressed doubt that the life sentences would have a deterrent effect on crime.
Acting Judge Piet van der Byl said: "This type of crime is taking on shocking proportions in our country. It is doubtful if the present minimum sentence prescribed by the legislature has the desired effect on crimes like these. “May be the time has come for the legislature to consider allowing courts to impose sentences that have a greater deterrent effect, for example to sentence the accused to imprisonment for the duration of their life.”
Judge Johan Els stated that citizens of South Africa no longer feel safe.
He said: "I am of the view that even life imprisonment is not a deterrent. These crimes occur daily and I would have felt that the only deterrent and fit sentence would be the death penalty.”
I must confess that I am in a dilemma as to whether or not the death penalty should be abolished in Zimbabwe. My heart says the death penalty should not be abolished whilst my head stubbornly argues that the death penalty is a barbaric form of punishment that should be abolished because it belongs to the Dark Ages!
The most recent executions in Zimbabwe were performed in 2003 when Steven Chidhumo, Elias Chauke and two others were executed at Harare Central Prison. Recently, I have heard that extra- judicial executions routinely take place in Zimbabwe. I am unable to submit that the death penalty is a panacea to serious and violent crime.
Obert Chaurura Gutu is a Zimbabwean lawyer writing from Harare and he can be contacted on: email@example.com